CREATING A TRUE ARMY OF ONE - Harvard Law School

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154 <strong>Harvard</strong> Journal of <strong>Law</strong> & Gender [Vol. 30 What is the impact of soldiers failing to work as members of a team? The former Secretary of the Army, Togo West, and the former Army Chief of Staff, General Dennis Reimer, argue that this lack of teamwork “can often lead to failure of the mission, or even injury or death.” 16 This Article proposes substantive changes that seek to restore that teamwork and trust. Part I provides a historical context and considers how the Army has responded to sexual harassment in the past. In particular, this Part considers the triumvirate of sex scandals that befell the Army in the 1990s and the organization’s responses, culminating with the 2002 Armed Forces Sexual Harassment Survey. The Army’s discordant responses to such conspicuous cases are particularly important, for they determine whether and how victims will respond to harassment in the future. 17 Part II considers how the Army deªnes sexual harassment, with particular emphasis on the shortcomings inherent in DoD Directive 1350.2’s complaint process. Part III considers how the Army punishes those accused of sexual harassment. In particular, this Part considers the difªculty of punishing harassers, as sexual harassment is currently not included in the punitive articles of the Uniform Code of Military Justice. Part IV considers four proposals to more effectively combat sexual harassment in today’s Army. Although the Army has confronted the issue of sexual harassment by forming countless committees, issuing numerous reports and regulations, implementing Prevention of Sexual Harassment (POSH) and sensitivity training, 18 and establishing new complaint processes, female soldiers are still subject to pervasive sexual harassment. The Army will only be able to eliminate or, at the very least, substantially reduce sexual harassment by fundamentally changing the military justice system. Necessary changes include revising the Uniform Military Code of Justice and amending federal legislation heretofore inapplicable to military members. The Army must also promote a “healthy human relations environment” 19 in which each soldier is treated with dignity and respect. 20 Only then will a true “Army of One” 21 be created. As the Senior 16 West & Reimer testimony, supra note 12, at 14. 17 See, e.g., infra notes 418–441 and accompanying text. 18 In determining what constitutes sexual harassment, typical POSH and sensitivity training focuses on three questions: “What was the intent of the individual exhibiting the behavior?”; “What was the impact of the behavior on the victim?”; and “Was the behavior unwelcome or unsolicited?” Typical training is given by the equal opportunity advisor (“EOA”) and generally delineates three categories of sexual harassment: verbal, nonverbal, and physical. See, e.g., U.S. Army, The Prevention of Sexual Harassment, available at http://www. 104thasg.hanau.army.mil/EO/InstructorsGuides/PreventionofSexualHarassment.htm (last visited Dec. 3, 2006). Serving as an EOA is a full-time position. Senior Review Report, supra note 9, at 43. Each EOA is a graduate of the sixteen-week Defense Equal Opportunity Management Institute (“DEOMI”) course. Id. at 52. Normally one EOA will be assigned to a brigade (a unit of approximately 2,000 soldiers). Id. at 43. 19 Senior Review Report, supra note 9, at 14. 20 Id. 21 In January 2001 the Army replaced the recruiting slogan “Be all you can be” with
2007] Proposals To Combat Sexual Harassment in the Army 155 Review Panel warns, “Should we fail . . . our ability to ªght wars and promote peace will surely suffer.” 22 I. How the Army Has Responded to Sexual Harassment A. The Army’s Equal Opportunity (“EO”) Program The Army created its Equal Opportunity (“EO”) program in 1964— well before the high-proªle sexual misconduct cases of the 1990s. 23 The program’s purpose was to ensure “fair treatment for all persons based solely on merit, ªtness, and capability in support of readiness.” 24 That is, the Army seeks to maximize human potential based on merit. The same year, under instruction from the DoD, the Army promulgated Army Regulation (“AR”) 600-20, its ªrst EO regulation. 25 At that time, women constituted less than two percent of military members in the gender-segregated Women’s Army Corps (“WAC”). 26 While sexual harassment was evident the oddly contradictory rallying cry “An Army of One.” The fact that the motto attempted to promote both individuality and a sense of equality within an organization that has traditionally eschewed both is precisely the point. See, e.g., Heike Hasenauer, What’s Up with An Army of One?, Soldiers Online, http://www.Army.mil/soldiers/apr2001/features/ad campaign1.html (last visited Dec. 3, 2006) (noting that the new slogan “accomplishes the Army’s mission ‘to emphasize the fact that you can retain your individuality in the Army and still meld well into a larger force’”). In addition to promoting individuality, the slogan also seeks to advance the ideas of equality and personal dignity. See, e.g., Army Public Affairs, Operation Tribute to Freedom, Army Birthday 2004, http://www4.army.mil/otf/ speech.php?story_id_key=6011 (a generic speech prepared for “Army audiences and the general public” noting that “[a]n Army of One is an Army that upholds the dignity and value of every Soldier, regardless of their rank, race, religion or sex”). Some critics, however, viewed the slogan as “awkward and needing too much explanation” and in October 2006 the Army pulled the plug on “An Army of One.” Gina Cavallaro & Michelle Tan, “Army Strong” Gets Thumbs Up, Army Times, Oct. 11, 2006, at 5, available at http://www.armytimes.com/print.php?f=1-292925-2169156.php. On October 9, 2006 the Army unveiled its latest advertising campaign, the product of a $200 million a year contract with advertising giant McCann Erickson/New York. See, e.g., Lewis Lazare, Army Campaign Is All That It Can Be, Chi. Sun Times, Oct. 10, 2006, at 53. Army Secretary Francis J. Harvey says the new slogan, “Army Strong,” “characterizes what the Army is all about.” Cavallaro & Tan, supra, at 5. A promotional video by McCann Erickson explains, “There’s strong, and then there’s Army strong. There is nothing on this green earth that is stronger than the U.S. Army.” Ctr. for Media and Democracy, U.S. Army: From “One” to “Strong,” Advertising Age, Oct. 9, 2006, http://www.prwatch.org/node/5286 (last visited Dec. 3, 2006). “An Army of One” is not the ªrst recruiting slogan to be jettisoned. Past Army recruiting slogans since the draft ended in 1973 include: “Today’s Army Wants to Join You” (1971– 1973); “Join the People Who’ve Joined the Army” (1973–1979); “This is the Army” (1979– 1981); “Be All You Can Be” (1981–2001); and “An Army of One” (2001–2006). “An Army of One” is out: Service Unveils New Slogan, Army Times, Oct. 9, 2006, http://www.army times.com/story.php?f=1-292925-2162575.php. 22 Senior Review Report, supra note 9, at 14. 23 Id. at 39. 24 U.S. Dep’t of Army, Reg. 600-20: Army Command Policy, July 15, 1999, para. 6- 1, available at http://www.usma.edu/EO/regspubs/r600_20.pdf(hereinafter AR 600-20) [hereinafter AR 600-20]. 25 Id. 26 The Act set the two percent ceiling on the number of women permitted to serve in
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